Mrs M B Sousa Menezes da Silva v Emergency Personnel Homecare Ltd and others: 3200694/2022
EMPLOYMENT TRIBUNALS
Case No 3200694/2022
Between
Mrs M B Sousa Menezes da SilvaClaimantEmergency Personnel Homecare Ltd and othersRespondent
Before
Employment Judge HarringtonDate 4 February 2026
JUDGMENT
The claims against respondents 2-5 are dismissed following withdrawal by the claimant. The claim against the first respondent Emergency Personnel Homecare Ltd will proceed. JUDGMENT The judgment of the Tribunal is that: -[1]The Claimant’s application for the Respondent’s response to be struck out is refused.
REASONS
[1]The case has a long and extensive procedural history. There have been five preliminary hearings in this case (with the full merits hearing having to be adjourned and relisted on three occasions). The case has also generated an unusually large number of orders and has required judicial oversight on many other occasions. The full merits hearing lasted for eight days which was disproportionate to the issues that had to be decided. It is therefore necessary to set out the history of the case in some detail.[2]At the first preliminary hearing on 20 September 2022, the full merits hearing was listed for 12 and 13 January 2023. By email of 22 September 2022, the Claimant indicated that she sought to amend her claim to include a claim of whistleblowing detriment. The full merits hearing was postponed and relisted to 23 and 24 March 2023 and the hearing on 12 January 2023 was converted to a preliminary hearing for case management purposes by EJ Harrington. The Respondent’s representative was unable to attend that hearing due to illness, but the Claimant attended and confirmed that she was complaining of unauthorised deduction from wages, breach of contract and wrongful dismissal. EJ Harrington set out the details of the Claimant’s claims for unauthorised deduction of wages in her case management summary at para 6 (reproduced in this judgment below). The full merits hearing was postponed and that matter was listed on 23 March 2023 as a preliminary hearing to determine the Claimant’s application to amend her claim and to determine any other further case management orders.[3]The third preliminary hearing took place on 23 March 2023 before EJ Yale, when the judge refused the Claimant’s application to add a whistleblowing detriment claim and relisted the final hearing for 16 and 17 January 2024. The judge also made a number of case management orders in preparation for that hearing, including that witness statements be exchanged by 23 September 2023. The Claimant applied for a reconsideration of EJ Yale’s decision to refuse her amendment application. This application was dismissed by EJ Yale for reasons set out in a written judgment sent to the parties on 7 August 2023.[4]The full merits hearing on 16 – 17 January 2024 did not go ahead. The reasons for this are set out EJ Massarella in his case management order dated, 17 January 2024, (at para 63): ‘It became clear that the case was not ready for final hearing: the Claimant had not disclosed her documents to the Respondent, nor has she produced or exchanged a witness statement: the bundle is not agreed; there were several outstanding applications to be determined; and the issues required further clarification. I converted the hearing into a preliminary hearing for case management in private which lasted until lunchtime on the second day. I determined the applications [including an application by the Claimant for specific disclosure] at the hearing and gave oral reasons. Although not required to do so, I have recorded the reasons in writing in this summary to assist any judges dealing with this case in future.’[5]In the period between March 2023 and the preliminary hearing in January 2024 correspondence of well over one hundred pages had been generated between the parties. EJ Massarella noted that ‘The tone of that correspondence was consistently antagonistic as between them’ (para 62 of his order). The majority of this correspondence related to the Claimant’s application for specific disclosure, in which she had made 63 requests for documents or categories of documents which she had set out in table form (‘the table’). EJ Massarella noted (at para 68): ‘The Claimant insisted that more than one judge had already ordered the Respondent to disclose these documents before REJ [Regional Employment Judge] Burgher wrote to the parties, apparently refusing the application on 15 January 2023. I heard submissions from the parties as to whether that was correct …..’[6]After detailing the procedural history of the Claimant’s application, EJ Massarella ruled: ‘90. By letter dated 15 January 2024, REJ Burgher ordered as follows: “the hearing will proceed as listed. The postponement application is refused. The Claimant’s application for disclosure is unfocused and is refused. Any non-compliance with ET orders can be raised at the final hearing and appropriate decisions made and if necessary ordered.” 91. I have considered all this material carefully and I have concluded that the Regional Employment Judge has explicitly refused to order specific disclosure of the documents in the table and that no previous judge had made an order for disclosure of specific documents. Because REJ Burgher has already made an order refusing disclosure of the documents in the table, I cannot go behind that order unless there is good reason for doing so. I cannot see any such reason’.[7]EJ Massarella then went on to clarify the issues in the case. In respect of the unauthorised deduction of wages claim, he noted that the Claimant agreed with the issues in that respect as set out in para 6 of EJ Harrington’s case management summary. In respect the Claimant’s claim for wrongful constructive dismissal. EJ Massarella noted: ‘98. The basis for the Claimant’s claim of wrongful constructive dismissal has not been properly identified: specifically the fundamental breach of contract, in response to which she says she resigned. In discussion with her, she confirmed that she is relying on a series of adverse events, set out in her claim form. It appears to me that she was relying on a cumulative breach of the implied term of trust and confidence. Mr Carlo [then the Respondent’s representative] confirmed that he was not taken by surprise by that analysis.99. At the end of the first day of the hearing, I asked the Claimant to produce a schedule overnight of all matters contained in the claim form, which she says amounted to a breach of the implied term of trust and confidence. In the end, and at my request, she produced a second schedule for reasons which I will go on to explain.100. On the first day of the hearing, I told the Claimant that, logically, none of the matters which post-dated her resignation could be relevant to the breach of the implied term in response to which she resigned. I reflected on this overnight and concluded that, on the facts of this case, the position might be more complicated. The Claimant resigned on 8 November 2021. She resigned on notice, with the termination date of 6 December 2021. It is her case that the Respondent improperly pressurised her into bringing her termination date forward to 26 November 2021. If this is the correct analysis, then the actions of the Respondent between the initial resignation and the eventual resignation would be relevant to the cumulative breach of the implied term.101. Mr Carlo did not object to that analysis; indeed, he said that that was initially how he had understood the claim to be put. For that reason, I asked the Claimant to prepare a second schedule of the matters she relied on for the purposes of her wrongful constructive dismissal claim. The Respondent has confirmed that it accepts that all matters contained in the schedules are contained in the claim form, although it does not accept that they are, or are capable of, amounting to breaches of the Claimant’s contract of employment.102. Both schedules are attached to this preliminary hearing summary [reproduced in this judgment, below].103. I also explained that there may be a difficulty with the Claimant’s contention that the initial resignation amounted to a constructive dismissal because she resigned on notice. Although the Employment Rights Act 1996 provides that an employee may resign with or without notice when she is claiming constructive unfair dismissal, the position at common law (which applies in a wrongful constructive dismissal claim) may be different: the decision to continue working for the employer during the notice period may amount to an affirmation of the contract and may defeat the claim. Of course, that problem would not arise in relation to the later decision to terminate the contract early, because that decision took effect immediately. … The unauthorised deduction from wages claims … 112. The Claimant agrees that the unauthorised deduction from wages claims remain as set out at paragraph 6 of EJ Harrington’s case summary of 12 January 2023. … 113. Without objection from the Respondent, I permitted the Claimant to rely on these matters, in the alternative, as claims of breach of contract.’
The hearing
[8]The hearing took place at the East London Employment Tribunal between 8 – 11 and 15 July and 4 - 7 November 2025. The case was originally listed for four days and later extended to eight to allow for completion and of the hearing, including two days for preparing and delivering judgment. In the event, the case did not sit for two of those days (one due to judicial illness (11/7/25) and another due to the Respondent’s witness having an official matter to deal with (6/11/25)). The loss of these two days did not detract from the hearing time, but meant that this judgment had to be reserved. Ms Barlay was also permitted time to take instructions in relation to the bundle of documents presented by the Claimant on the first day of the hearing and on other issues. The situation with the documents in the case is discussed below. The documents[9]At the commencement of the hearing, the Respondent provided the tribunal with a bundle consisting of 475 documents plus witness statements. Despite a number of judicial orders that a document bundle must be agree between the parties this had not been done. The Claimant had refused to agree the Respondent’s bundle and presented a bundle of her own consisting of 772 pages. She objected to the Respondent’s bundle in its entirety, but in particular she argued that the ‘Docusign’ documents relating to her contract of employment (which included the statement of her terms and conditions, her job description, and the employee handbook) were fabricated and that she had never signed or seen those documents. Throughout the hearing the Claimant raised on a number of occasions that there were a number of documents in the case that existed, but which were not disclosed to her by the Respondent. She also said that the order of REJ Burgher for specific disclosure had not been complied with by the Respondent.[10]On 11 July 2024 there had been a fifth preliminary hearing before REJ Burgher when he reconsidered the Claimant’s application for specific disclosure. He set out in his order which applications he had allowed. By email correspondence to the Claimant and the tribunal, dated 6 September 2024, the Respondent’s then representative (Mr Carlo), indicated that he had carried out an audit of all the documents that had been sent to the Claimant. He stated that copies of her P45 and payslips had been sent by email on 19 June 2023 and that all the other items referred to in REJ Burgher’s order had been included in the bundle sent to the Claimant on 24 November 2023, acknowledged by her on 28 November 2023.[11]Following REJ Burgher’s order there had been extensive correspondent between the parties in relation to disclosure. From this it appears that part of the reason for the Claimant’s assertion that the Respondent was withholding relevant evidence was due to the fact that the Respondent had indicated that any ‘on-call records’ for the Claimant that may have existed could not be allocated and that such records might have been kept by one of her line managers. The Respondent went on to explain that it had a policy of closing email accounts 30 days after any employee (including the Claimant) had left its employment. Ms Naomi Kamana and Ms Jodie Hutton, the Claimant’s line managers, had left the Respondent’s employment on 5 and 8 October 2021 respectively. The Claimant asserted that the Respondent had deliberately deleted their email accounts to prevent her accessing their emails. The Respondent explained that all those email accounts and the Claimant’s had been closed some time before the Claimant had brought her claim. The Claimant had also requested CCTV evidence and recordings of telephone conversations. The Respondent explained that the CCTV system in place was for security reasons and that it did not record meetings. It also said that recordings of telephone calls were only kept for three months during the time of the Claimant’s employment (but had since been increased to twelve).[12]Throughout the hearing, the Claimant disputed this position and refused to accept that all relevant documents had been disclosed to her. She also refused to agree any of the Respondent’s documents. The Claimant also made three applications to strike out the Respondent’s response on 8, 9 and 15 July, arguing that the Respondent had not complied with tribunal orders around disclosure and that the Respondent was relying on false or otherwise tampered with evidence. Her argument was that the Respondent had tampered with or formulated documents generally to assist its case, but she did not direct me to any evidence in support of this contention.[13]On day 1 of the full merits hearing, I informed the Claimant that her bundle of 772 pages was disproportionate to the issues in the case, particularly bearing in mind that documents that she had disclosed to the Respondent were contained within its bundle. Overnight, the Claimant reduced her bundle to 163 pages. In the absence of any agreement from the Claimant, I permitted the Claimant to refer me to documents within her own bundle should she wish to, and that, in the event of a challenge to the authenticity or provenance of any of the Respondent’s documents, I would address and resolve the issue within my judgment. While the Claimant maintained that she had not signed or seen her contract of employment and its related documents, she did not challenge the provenance of any of the email documentation referred to during the hearing, much of which was also contained within her own bundle (and was identical to that in the Respondents bundle).[14]The Claimant gave evidence on her own behalf under oath. Mr Hobson (Head of Operations) gave evidence under affirmation for the Respondent. Submissions[15]Both parties provided written submissions and made oral submissions at the hearing which have been carefully considered by the Tribunal.
Findings of fact
[16]The Claimant was employed by the Respondent, a complex care provider to community patients, as an Adult Clinical Lead Nurse from 22 March 2021 until 26 November 2021. The claim for was presented on 22 February 2022, after an early conciliation period between 17 December 2021 and 25 January 2022. The Claimant’s contract of employment[17]On dates either before or after she started her employment with the Respondent, the Claimant was provided with and signed for the following documents, using the online Docusign platform (these documents were contained with the Respondent’s and the Claimant’s bundles but the Claimant argued that she had not signed or seen the documents before) (Respondent’s bundle, pp 176 – 180):17.1 Statement of Main Terms of Employment, signed by the Claimant and Mr Hobson on 3 February 2021 (under Docusign Envelope ID B9F6A267-5A66-475B-AA8D-D9235EFF900D). The Claimants Statement of Main Terms was to be read in conjunction with the Employee Handbook and other documents, most particularly the Working Time Opt Out Agreement.17.2 The Respondent’s Employee Handbook, signed by the Claimant on 24 March 2021 (under Docusign Envelope ID CBBF142F-D1E7-B5EB5FFE36047C62).17.3The Working Time Regulations 1998 Opt Out Agreement and Restrictive Covenant Agreement, signed by the Claimant on 22 March 2021 (under Docusign Envelope ID 1E176EAA-DDBF-4F83-8088-53F3C43FF023).[18]Within the Claimant’s Statement of Employment her Clinical Lead Nurse job role, one of the ‘Role Objectives’ is to ‘Follow an On-Call out of hours rota’. Under the ‘Statement of Main Terms of Employment’ - ‘Renumeration’, it states that ‘Your salary is set at such a level as to compensate for the need for occasional additional hours’. All clinical leads share the on-call rota (meaning that they would each be on call approximately once every eight weeks) and its purpose is to ensure cover for any clinical emergencies arising in respect of any of the Respondent’s patients. Being on the on-call rota was unpaid and there was no requirement that a Clinical Lead Nurse remained at home or attended the office when on call. If they received an emergency call whilst on the on-call rota and were required to visit the patient at their home, they were required to so advise their line manager of the hours worked and once these had been approved they would be paid for the hours worked or given time off in lieu. The Claimant’s line managers were Ms Naomi Kamana and Ms Jodie Hutton. They reported to Ms Abigail Waldron. Ms Kamana and Ms Hutton left the Respondent’s employment on 5 and 8 October 2021 respectively.[19]Within the Employee Handbook (p 6) it states that salaries are normally paid on the last working day of the current month and there is a provision for any overpayments to be deducted from the next payment (Employee Handbook, p 43).[20]While Clinical Lead Nurses were field based, they were permitted to work from the office or from home. They were required to travel extensively and when working outside of the office they were required to use an App called ‘BLIP’ to log their working hours and to keep the Respondent informed about their whereabouts. Time spent travelling from home to the office or from home to a business appointment was unpaid (Employee Handbook, p 24).[21]Clinical Leads, including the Claimant, were provided with a company car to assist with their duties.[22]In terms of sick pay, the Employee Handbook (at p 9) stated ‘You are entitled to statutory sick pay if you are absent for four or more consecutive days because of sickness or injury provided you meet the statutory qualifying conditions … Qualifying days are the only days that you are entitled to Statutory Sick Pay’. This was also an express written term of employees’ written contracts of employment (Claimant’s bundle, p 2).[23]In relation to return of company property, the Employee Handbook (p 44) provided that, on termination of employment, company property must be returned and that failure to do so will result in the cost of such items being deducted from any monies owing to the employee at the end of the employment.[24]The Respondent had a grievance procedure which was set out in the Staff Handbook (p 35): ‘… Nothing in this procedure is intended to prevent you from informally raising any matter you may wish to mention. Informal discussion can frequently solve problems without the need for a written record. However, if you wish to raise a grievance you should do so in writing from the outset … you should first raise the matter with the person specified in your Statement of Main Terms of Employment, explaining fully the nature and extent of your grievance. You will then be invited to a meeting at a reasonable time and location at which your grievance will be investigated fully …’ The factual background[25]On 1 September 2021 the Claimant and other Clinical Lead Nurses had a team meeting with Ms Waldron with a view to discussing how improvements could be made to the services offered by the Respondent. The Respondent had a Care Quality Commission (CQC) rating of ‘Good’ but wanted to improve on this. During this meeting the Claimant says that she and other Adult Clinical Lead Nurses expressed that they were not happy with being on call for paediatric patients and that they should be paid for working on the out-of-hours on-call rota. The Respondent says that at the meeting all Clinical Leads confirmed that they were happy to be contacted out of hours regarding one of their patients if it was not the speciality of the Clinical Lead on call and they required assistance. At some point thereafter, the Claimant and some of her Lead Clinical Nurse colleagues created a WhatsApp group. The Respondent says this group was a forum for a continuation of the discussion about issues that had been raised during that meeting, particularly around the on-call rota, but the Claimant states that it was for the purpose of organising a drinks party for a colleague who was leaving.[26]On 30 September 2021, the Claimant had her final probation meeting with Mr Hobson, who confirmed that she had been ‘signed-off’ by Ms Kamana and Ms Hutton as completing her probationary period. On the same date the Claimant requested a pay rise stating that she had downgraded her nursing band and salary to work for the Respondent.[27]On 27 October 2021 Ms Waldron sent an email to all staff following an incident where suction equipment could not be located following an equipment failure at a patient’s home. The email states (Respondent’s bundle, p 25): ‘Dear Team, Serious equipment incident I am requesting that the clinical team implement daily equipment log checks signed and dated by nurses. Logs were in many homes but not completed and dated daily … Today we had an incident where two suction machines in a home were not working I cannot tell you the risk this presents to clients’.[28]On 28 October 2021 Ms Waldron sent the Claimant the following email (Respondent’s bundle, p 32): ‘Dear Monica, As I understand it we have a discharge date of 10.11 So can you 1. Please book interviews with all staff in the next 48 hours or agree they are all know cares to [ …] and […] would have checked all the skills with Carers are you happy to go ahead with her checks please confirm that. 2. Give […] your availability for sign offs up until the 10.11 3. Can you work with […] to book 3 shifts with carers with a nurse support and then sigh off can be completed and ask the ccg for approval as I understand these shifts will be in hospital if we cannot get 3 in for all staff before discharge we will book a nurse to support the sign offs and facilitate the discharge on 10.11 … We can absolutely get this patient home if we work as a team and we have a decent lead time so let’s get this done. Thanks Abi’[29]The Claimant replied to Ms Waldron (Respondent’s bundle, p 230): ‘Dear Abi, Don’t take this the wrong way, but unfortunately you are not clinical, or would know how long it takes to do a clinical review…’[30]Later on, 28 October 2021, the Claimant made a complaint against Ms Waldron saying that she was bullying her. The email was sent to Mr Hobson, Mr Joshua Garnham and Mr Charles O’Connor (the Directors of the Respondent) (Respondent’s bundle, p 35): ‘I would like to present a formal complaint against Abigail and the bullying I have been subject to several times over the past few weeks. My work and myself have been continuously undermined. A few minutes ago, Abigail, after screaming on the phone to me, regarding the attached email [para 28 above), just literally hung up the phone on my face while I was trying to speak with her. I am requesting that her phone calls to my work phone be listened to. I am extremely tired of defending my work and myself constantly.’[31]On 28 October 2021, Mr Garnham sent an email to the Claimant and Ms Waldron suggesting that it would be beneficial to have a three-way telephone conversation the next day. The Claimant explained that she was not in work the next day due to her son having a planned surgery. Mr Garnham replied explaining that he had not been aware that the Claimant’s son was having surgery and apologised.[32]On the evening of 28 October, Ms Waldron sent the following email to the Claimant: ‘I am not going to react to your constant challenges Monica. I did not scream you were become aggressive and spoke over me all the time so I cut the call short so we could involve a third party. You also challenged me and questioned my skill and ability in an email when all I asked is are you seeing one client a day. You are correct I did know your sons operation was tomorrow and I apologise for trying arrange tomorrow and it will be moved to suit. I am more than happy for Josh [Mr Garner] to listen to the call and think we can revisit this after the weekend. Please do not email back I see no reason to continue this until it is addressed with us all in a formal meeting’.[33]On 29 October 2021 the Claimant sent an email to Mr Hobson, Mr Garnham and Mr O’Connor stating (Respondent’s bundle, p 234): ‘I am still receiving emails from Abigail regarding my complaint, which is still another form of intimidation. Please see email attached [above]. Can someone please explain or send me the policy regarding how is the process for investigating formal complaints? Just to clarify, my complaint is about almost all her phone calls to me, not just the last one. Just today I had 3 very angry phone calls from Abigail, where she was extremely rude, undermining and intimidating. I have done everything that she required, and because of that I have my next week full (finishing 2 days at midnight and working 8 hr on Saturday), with no more than the 40 hours. And I am still being intimidated as I just don’t blindly comply. I believe the work that Abigail is doing is extremely important for [the Respondent], and I stated this several times even today during the phone calls. But I do not believe that the way to do it, is bending the truth or being rude and mistreating people for them to obey.’[34]On 1 November 2021 the Claimant sent another email to Mr Hobson, Mr Garnham and Mr O’Connor (and another manager) stating (Claimant’s bundle, p 50): ‘Can someone please make Abigail stop? I just received a phone call from Carla stating that Abigail phoned her earlier stating that, Abigail and me, are not seeing eye to eye (implying that it was my fault) and if she has any complaint to tell her. This is another way of Abigail’s undermining me and bullying me, now in front of my colleagues. I presented a formal complaint against her for bullying because of the way I am being treated by her, not because of us not seeing eye to eye … can someone please tell Abigail to stop?’[35]The HR Team emailed the Claimant on 3 November 2021 stating (Respondent’s Bundle, p 236): ‘…I am sorry to hear that you felt the need to raise a complaint against Abigail. As per our discussion yesterday regarding the complaint you raised and the attached email, we are happy to hold a meeting next week [9 November]… We are keen to resolve this matter as soon as reasonably practical and I would like to confirm that I am here to support you. I would also like to highlight to you that as you mentioned your mental health and wellbeing, we do have our EAP which is available for you to further support you, should you require the details then please ask and I will be more than happy to provide them for you’[36]On 4 November 2021, the Claimant replied to the HR team, copying in Mr Garnham, Mr O’Connor, Mr Hobson and others (Respondent’s bundle, p 236): ‘Thank you for your support and for highlighting our EAP. I will keep that in mind.’ The Claimants Time Off In Lieu (TOIL) and Expense Claims[37]On 3 November 2021 the Claimant had received a notification about her TOIL hours on her phone and she informed Mr Hobson that 24 hours had been removed rather than 17. Mr Hobson said that he would investigate.[38]The Claimant wrote to Mr Garnham on 5 November (Respondent’s bundle, p 238): ‘Attending to the last occurrences with the miss usage of my TOIL and the refusal to pay my company expenses, both by Will [Mr Hobson], I would like to enquire if I should bring a solicitor to Tuesday’s meeting? And if I should cancel all my future visits to packages? I am on TOIL (24 hr instead of 17 hr as I requested to Will), due to sickness related (as it was going to be unpaid, even though I never took a sick day in almost 8 months), and most of my TOIL disappeared, none of the TOIL approved by Naomi [Kamana] was added and my service car insurance expense denied (being paid monthly since May). Timely emails were sent providing the required explanations and nothing was actioned. If I am going to be completely honest , I am currently starting to feel that I am being pushed out of the company, besides a victim of several unfairnesses I believe this is adding to constructive dismissal. Please do correct me if I am misreading the whole situation and I apologise if I am, but it literally is starting to look like it …’[39]In relation TOIL, Mr Hobson sent the Claimant an email on 15 November 2021 clarifying that the Respondent did not take into account the travel time from home to the first visit and travel time from the last visit to home. He said that this had always been the Respondent’s policy. The Claimant said she had not been informed of this by either Jodie or Naomi (her previous line managers) and asked where it was written down (Respondent’s bundle, p 277). Mr Hobson replied by email (Claimant’s bundle, p 54): ‘Re: Blip – travel time Dear Monica, Your response was negative and as previously mentioned, direct these comments directly to myself or just Senior Management in future and don’t well poison everyone else with your opinions. Even though it is not the case with regards to this matter, I feel that it is important to inform you that company rules can change and be communicated at any time. I have been in meetings where this was discussed with all the clinical leads, therefore you was aware of it, thank you.’[40]On 5 November 2021 the Claimant had a separate email discussion with Mr Hobson regarding the refund of car insurance payments. Mr Hobson explained that the Claimant had not submitted this expense by the monthly deadline for the processing of staff expenses (as set out in the Employee Handbook) and that it would be processed the following month (Respondent’s Bundle, pp242, 268). The Claimant’s resignation letter[41]On 8 November 2021 the Claimant wrote to Mr Garnham and Mr O’Connor submitting her resignation and indicating that her last date working with the Respondent would be 5 December 2021 (Respondent’s bundle, p 240): ‘It is with reluctance that I am submitting this letter. Although my time with [the Respondent] has been, overall, satisfying and productive, for the past few weeks I have become less and less pleased with the way I have been treated as a person and an employee. Therefore, it is with regret that I come hereby to present my formal resignation from my current position of Adult Clinical Lead Nurse. My notice period is four weeks, therefore my last day of work will be 5 December, as per the terms of my contract …’[42]On 8 November 2021, the HR Team emailed the Claimant cancelling the meeting regarding the Claimant’s complaint about Ms Waldron (Respondent’s bundle, p 64): ‘… As you have resigned today, we don’t feel that there is a need to hold the planned meeting for Tuesday this week. As you are within your notice period, you are still expected to perform your full-time role until your last day with the company so please do not cancel any visits and fulfil your role as normal, unless otherwise advised. We will go through your TOIL and advise accordingly. We would like to confirm that there is no reason for you to believe that you are being pushed out of the company at all …’[43]On 19 November the Claimant received a letter from AXA Insurance stating that her health insurance had been cancelled as of 15 November 2021. She sent an email to Mr O’Connor and Mr Garnham indicating that she had paid it in full until the end of November. In the same email, the Claimant also raised issues about Mr Hobson’s behaviour towards her since she had made her complaint about Ms Waldron and stated that examples of that were his refusal to refund congestion charges and his refusal or removal of TOIL that she said had previously been agreed with Ms Hutton.[44]Mr O’Connor replied on 25 November stating (Respondent’s bundle, pp 244 – 245): ‘Hi Monica Apologise about the delay in coming back to the below, I have been extremely busy as well as needing to go off and investigate your comments. … I would like to comment on all the below examples you have provided, please see my comments in red [italics in this judgment]: The car insurance was approved by him [Mr Hobson] on 7th of May, however he refused to refund my car insurance on the 5th of November at 11 am, querying who approved it. I sent him the evidence a few minutes later and he still didn’t refund me. He alleged that he didn’t have me, but he only approved Nuno’s [colleague] expenses at 2 pm and pay him at 4 pm (Nuno has the screenshots as he thought, which happened, he wasn’t going to be paid properly). Which means Will was lying. This simply missed the expense deadline and was paid the following week so don’t really see the issue here. Last week, for the first time ever, he approved my expenses and didn’t pay. 3 hr later I sent an email questioning it and then a few minutes later he paid them. Will doesn’t process payment , Mat/payroll does. Will just processes and approves the expense which are sent to Mat or his team for payment, again no issue here this has followed the correct process. Today he refused to refund the congestion charge that I paid to see [patient]. He refunded the parking that is inside the congestion charge zone, but simply refused the congestion charge without any explanation. And all the other visits had been approved, CC and parking. The post code for that package is not within the congestion zone, meaning Will was well within his right to decline this expense … [A number of issues of TOIL are raised by the Claimant] … Will is due to conduct an audit on you[r] TOIL, as I have already advised a number of times. Today I received a letter at home stating that our health insurance was cancelled on the 15th of November, without my knowledge or agreement, after paying it in full. This has already been resolved and Will confirmed it was a mistake by AXA, you was still covered by our insurance. This should clear everything up for you Monica. I completely deny that Will is bullying you, he is just fulfilling his role as Head of Operations here at Emergency Personnel. From what I have found and had feedback across the board, I feel you have repeatedly not followed company processes regarding diaries, expenses and TOIL. As a result the company rejects them, which we have every right to do so. Instead of simply fixing it and following the company’s processes and expectations, you have come out making a load of false allegations which are completely rejected.’[45]On 24 November 2021 the Claimant received a phone call from her son’s nursery stating that he had a temperature. She took a half day off work to care for him. The Respondent initially recorded this as sick leave, but thereafter took the view that it was not sick leave in accordance with its policy on sick leave and recorded it as unpaid leave.[46]On 24 November the Claimant, in common with all other employees of the Respondent, received a letter from NEST, the Respondent’s pension provider. The Claimant’s indicating that she had only been enrolled on the pension scheme on 24 November even though she had been working for the Respondent since March. This was a companywide issue and Mr Hobson investigated it and found that it was due to an error regarding payment links.[47]At the hearing, the Claimant produced a letter from NEST informing her that her payments had stopped but she still remained a member of the scheme (Letter from Nest to the Claimant 18 January 2022, NEST reference MEM018744/UMD-B015/498125624). However, the NEST ID on that document was different to the one that the Claimant had on her account with the Respondent.[48]The Claimant considered what had happened to be an unlawful deduction and she reported the matter to the Pensions Ombudsman and the Pensions Regulator. Subsequently the Respondent rectified the payment errors, and all outstanding contributions were made into the scheme on behalf of all the Respondent’s current and past employees on 2 February 2022. The Respondent sent an email to all employees, including the Claimant, on 19 January 2022 to inform them about the situation.[49]On 25 November 2021, Mr Hobson sent an email to the Claimant stating: ‘I am writing to offer you the opportunity to bring forward your notice to tomorrow Friday 26th November. The reasons for me offering you this solution are for the reasons below: - You are not fulfilling your contractual duties and are being unprofessional - You have refused to conduct competencies, supervisions and spot checks for ABC package - You have a serious failed discharge BB package result in negligence of a patient - You have created a Whatsapp group to attempt to well poison our staff - You point blank refused to fulfil your contractual on-call duties providing us with less than an hours’ notice, again resulting in negligence of all patients - The general standard of work and paperwork in your packages is very poor - You have been interviewing for a new job in company time - You have breached company policy and GDPR by sending company data on your personal email - You have been using your work laptop for personal reasons on multiple occasions which is a breach of company policy - You have completed training for Safeguarding Level 1 & 2 for both Adults and Children during company time on 20th October I will also take all the above into consideration when conducting your TOIL audit, any hours owed to the company will be deducted from your pay as per our contractual right. I will be conducting a very thorough check of your activity on your laptop usage, Sharepoint activity, Office 365 activity and your mobile phone activity as it has now come to light that you have not always been working during working hours. If you accept tomorrow as your last working day, I am aware that you have an assessment at 10.30 am for a TT package. I expect you to call Amina straight after this assessment to provide a detailed handover of your packages and then come straight to the office to handover all company property to me directly. I would also like to politely remind you that all company property is returned to myself, in the condition they were passed over to yourself, to avoid deductions from your salary as per our contractual right. If you fail to agree to bring forward your notice period, I will have no option but to proceed with disciplinary action against you as well as escalating this to the NMC [The Nursing and Midwifery Council – the Respondent made a referral to the NMC about the Claimant’s refusal to carry out tasks (Claimant’s bundle, p 145), which was later withdrawn by the Respondent at the investigation stage (Claimant’s bundle, p 6)].’[50]The Claimant replied to this email on 25 November 2021 refuting most of what Mr Hobson said and countering that during her nine months working at the Respondent she had encountered many aspects of unsafe practice that she said (Respondent’s bundle pp 249 – 252): ‘… might get to the CQC [Care Quality Commission]’. The Claimant also stated that she had secured a new job.[51]Mr Hobson replied to the Claimant on 25 November stating (Respondent’s bundle, pp 249 – 252): ‘Thank you for confirming that you are happy for your notice period to end tomorrow. I think that is in the best interests of both parties. You will however, as you are still employed by the company and have a duty of care, adhere to and fulfil your nursing duties and complete the assessment tomorrow morning as requested …’. The Claimant replied by email stating: ‘Please do not send texts or whats ups to my personal phone. I believe you misunderstood me. I said that I am happy for tomorrow to be my last day under the contingency that everything (salary, expenses, TOIL and notice until the 6th) is paid tomorrow. Attending to the last few weeks, I do not trust you and [the Respondent]. And therefore, once all this is clarified and paid, I am happy to leave [the Respondent]. I am fully aware of [the Respondent’s] tendency to decline expenses, forget to add TOIL and underpay employees. I have Nuno’s [the Claimant’s colleague] example for instance. Regarding my duty of care and nursing responsibilities, these are regarding patients in my care, not house assessments of Amina’s [Claimant’s colleague] patients that are still admitted in hospital, without a discharge date. That is Amina’s responsibility not mine.’[52]The Claimant returned all her company property on 26 November 2021. She said that as her notice period had been brought forward by 11 days, she did not have time to clean the company car and refused to sign the car return form. The car had not been cleaned inside or out. The four alloy wheels on the car had been damaged (the Respondent recorded the damage by photograph). The Claimant asked Mr Hodson to claim on the car insurance, which he could not do as the car was insured in the Claimant’s name and at her address. Mr Hobson explained in an email to the Claimant (dated 29 November 2021) that the cost of the damage and cleaning would be deducted from her final salary payment in accordance with the Respondent’s policy (as set out in the Employee Handbook, Respondent’s bundle, p 267).[53]The Claimant cancelled the NHS patient assessment that had been booked at 10 am on 26 November. Mr Hobson wrote to the Claimant by email regarding this saying that she was not fulfilling her nursing duties. He had also asked the Claimant to complete a handover with colleagues at midday. The Claimant replied stating that she could not make the handover as she had an appointment with a solicitor where she would discuss the bullying, breach of contract and unlawful deduction of wages issues. She also said that (Respondent’s bundle p 256): ‘All the things that I refused to do in the last three weeks are because it would jeopardise my NMC pin number and there isn’t any judge or NMC that would fault me for it’.[54]On 29 November 2021 Mr Hobson emailed the Claimant to say that he had conducted his investigation into the Claimant’s TOIL hours and confirmed that a total of 26.25 had been overpaid to her and that he would deduct the overpayment from her final salary.[55]Mr Hobson also conducted an audit of the documents submitted in relation to the Claimant’s hours worked on the week of 4 October 2021 which she disputed. He concluded from the records of the Claimant’s working hours that she had worked for 34 hours excluding breaks which was lower than her contracted working hours. Therefore, no TOIL was accrued. The Law to be applied Unauthorised deduction from wages[56]The Employment Rights Act 1996 Pt II provides that an employer shall not make any deduction from wages unless it is:(1) Authorised by statute;(2) Authorised by a relevant person in the contract;(3) Previously agreed in writing by the worker that the deduction can be made.[57]Wrongful dismissal is a contractual claim, in circumstances where the employer has breached either an implied or express term of the employee’s contract. An employee must prove that they were dismissed in such a way that breached their contract of employment. Breach of Implied term of trust and confidence (ITCC)[58]In the case of Woods v WM Carr Services Peterborough Limited [1981] ICR 666 the EAT ruled: ‘It is clearly established that there is implied in a contract of employment a term that employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.’[59]The ITCC is a mutual duty applicable to both employers and employees (Malik v BCCI SA (in liquidation) ICR 606.[60]In Tullet Prebon plc v BGC Brokers LP [2010] IRLR 648, Jack J held: ‘It is in a sense circular to say that the employer’s conduct must be serious enough to entitle the employee to leave. However, in considering what gravity of conduct by the employer is required, it is helpful to say that it must be such as so to damage the employee’s trust in the employer, that he should not be expected to work for the employer. Conduct which is mildly or moderately objectionable will not do. The conduct must go to the heart of the relationship. To show some damage to the relationship is not enough.’
Conclusions
[61]These conclusions follow the schedule of EJ Harrington in relation to the alleged unlawful deductions and the two schedules compiled by the Claimant in relation to the Respondent’s conduct relied upon in support of her wrongful constructive dismissal claim as noted by EJ Massarella in his order of 17 January 2024 (see paras 4 – 7 above). Unauthorised deduction from wages[62]The Claimants claims in respect of unauthorised deduction of wages were agreed by the claimant to relate to the following as set out in the order of EJ Harrington of 12 January 2023: The on-call payments (6.1)[63]The Claimant was provided with and signed her statement of employment, Job Description, Employee Handbook and other related documents including a ‘Wolking Time Regulations opt out agreement’ on dates noted (see para 17, above) on those documents either before or just after she commenced her employment. I do not accept the Claimant’s contention that she had not signed these and had not been aware of their contents during her employment with the Respondent. Her e-signature appears on the Docusign ID envelopes and I find it implausible, in the absence of any other evidence, that these documents were fabricated by the Respondent. Within the job description, under ‘Role Objectives’ it states one of those objectives as to ‘Follow an On-Call out of hours rota’. In the ‘Statement of Main Terms of Employment’ under ‘Renumeration’, it states that ‘Your salary is set at such a level as to compensate for the need for occasional additional hours’. Mr Hobson’s evidence was that the Clinical Lead Nurses shared the on-call rota (meaning that they would each be on call approximately once every eight weeks) and that being on the on-call rota of itself was unpaid. This accords with the Claimant’s contract of employment. In her evidence, the Claimant maintained that she should be paid for all the hours that she was on call under the rota on the basis that ‘she could not be expected to work for nothing’ and that she had been ‘induced to work unpaid’. However, the position is clear in the Claimant’s contract that she would not receive payment for being on the on-call rota. Mr Hobson explained that there was no requirement that a Clinical Lead remain at home or attend the office when on call and if they received a telephone call while on-call, which required them to undertake work, then they would either receive payment for the actual hours worked or be given TOIL. In my view the Claimant was aware that she would not be paid for being on call because she had sought to challenge this at the meeting with the Respondent on 1 September 2021. While the Claimant considered this to be unfair, she had no contractual right to be paid for being on the on-call rota. Therefore, she has no contractual right to claim the 590 hours of pay for being on the on-call rota. Furthermore, she has presented no documentary evidence that she worked those hours and there is a requirement that all hours worked are recorded on the BLIP App. This is therefore not an unauthorised deduction. Unpaid wages of £2,443.55 (6.2)[64]The Claimant argues that her manager at the time, ‘Jodie’ (Ms Hutton), had authorised that she be paid for 107 hours worked on the week commencing 4 October 2021 for which she was not paid. The Claimant has provided no documentary evidence that these hours were worked or no evidence of any authorisation from Ms Hutton. Mr Hobson carried out an audit of the times recorded by the Claimant on the Blip app and it showed that under 34 working hours were recorded for that week, excluding breaks. This was less than the Claimant’s contracted working hours. All employees were required to record their working hours on the BLIP app and I accept Mr Hobson’s evidence that the Claimant was paid for all her recorded working hours for that week and that nothing further is outstanding. This was not an unauthorised deduction. Unpaid expenses (£104.33) (at the hearing the Claimant said this should be £204.33) (6.3)[65]These expenses relate to reimbursement for two congestion charge payments, reimbursement of the Claimant’s service car insurance premium, and unpaid petrol expenses. The Claimant did not initially break down these payments and there was a lot of evidence heard about this at the tribunal and there was also an extensive email trail about these expenses between the Claimant and Mr Hobson (Respondent’s bundle pp 242, 268). Mr Hobson said that the congestion charge was not payable because the patient that the Claimant had visited did not live within the congestion charge zone and there was therefore no reason for the Claimant to have incurred this charge. The Claimant gave evidence that she needed to drive into the zone to park and that the congestion charge had been paid before. She asserted that Mr Hobson had not paid it because of the complaint that she had raised on 28 November. Mr Hobson accepted that it was paid on occasions before as a gesture of goodwill. While it may seem petty that it was refused on these occasions, the congestion charge was only payable if the patient visited lived within the congestion charge zone and Mr Hobson (and Mr Garnham) explained this to the Claimant at the time. Therefore, Mr Hobson was entitled to refuse payment, and this was not an unauthorised deduction.[66]In relation to the car insurance payment reimbursement, Mr Hobson gave evidence that all outstanding payments in relation to the Claimant’s car insurance (the disputed amount was the Direct Line payment of £142.05 for one month’s cover) were paid on 3 December 2021. In his email of 5 November 2021 to the Claimant, Mr Hobson had explained that the Claimant had not submitted this expense by the monthly deadline for the processing of staff expenses and that it would be processed the following month. The Claimant did not submit any evidence to suggest that the payment had not been made into her bank account on or around 3 December (although she supplied details of her account debits and credits before and after that time period). When crossexamined about why she had done this, she stated that she had been ‘hacked’. Even if this were the case, it does not explain why she was unable to obtain this information from her bank. I conclude that this expense has been paid. Therefore, there was no unauthorised deduction in respect of it.[67]Looking at the Claimant’s submitted claims recorded on the Respondent’s system for recording expense claims, Mr Hobson was unable to identify any claim submitted for petrol although there were many other expense claims submitted by the Claimant that had been paid. The Claimant did not provide evidence in support of this expense Claimant at the tribunal. I therefore conclude that she did not make any claim for petrol on the expenses system at the time or provide evidence of the same. Therefore, it was not payable, and it is not an unauthorised deduction. Unpaid balance of Claimant’s November 2021 salary (£2884.55)[68]The Claimant’s payslip, process date 30/11/2021 (which is a document that she does not dispute) was provided by the Respondent. The Claimant’s contract of employment was terminated on 26 November 2021 when she returned the Respondent’s property. The Claimant did not do any work that day, having cancelled a patient assessment. The payslip shows that she was paid £3,418.48 for the month of November less statutory deductions (£297 tax, £208.44 for National Insurance, and £84.13 pension contribution). This left a balance of £2,828.91.[69]Under the Claimant’s contract of employment, the Respondent is entitled to make deductions from salary for over -payments and damage to stock and other reasons (Staff handbook, p 43).[70]The other deductions from the Claimant’s salary recorded on the Claimant’s payslip which she contends are unlawful are:70.1£89.96 for a half day’s sick pay – this related to 24 November when the Claimant had taken a half day off work to look after her son who had a temperature. Under the Respondent’s sickness policy such absence did not amount to a ‘sick’ day and was therefore not payable as sick leave;70.2£345 was deducted for the repair and cleaning of the company car. The Respondent provided clear photographic evidence of damage to all four of the wheel alloys taken at the time the car was returned. The Claimant admitted that she had not cleaned the car due to not having time having agreed to bring her resignation forward. She refused to sign the car handover form. I accept that the Respondent was entitled to deduct this sum under the terms of the Claimant’s employment contract in relation to obligations around the return of company property;70.3£525 and £719.68 respectively were deducted in respect of payments for TOIL. I accept Mr Hobson’s evidence that his BLIP audit of the Claimant’s recorded working hours had indicated that the Claimant had claimed £525 for TOIL to which she was not entitled and that she had taken four days annual leave above her pro rata entitlement (£719.68). Mr Hobson explained how he had conducted an audit regarding these deductions and that left a total of £1,073.79 which accords with the Claimant’s net pay on her November payslip. The deductions as detailed in the Claimant’s November payslip were authorised under the contract of employment. Unpaid notice pay (£780.81)[71]The Claimant agreed to terminate her employment with the Respondent on 26 November 2021 by bringing her notice forward from 6 December 2021. She is therefore not entitled to any payment for the period between 26 November and the date on which her employment would have been terminated (6 December) had she elected not to leave on 26 November. Other sums (£124.74)[72]The Claimant’s claim for £90 (one day’s pay when she said that she was working but had been marked as sick) related to a day when she was not working but had taken the day off as her son was having surgery (29 October 2021). This had been marked as sick leave in error (it would not have amounted to a sick day on the Respondent’s sick leave policy in any event). As the Claimant did not work on this day she is not entitled to this amount. The remainder (£34.74) relates to the Claimant’s AXA insurance. The Respondent did not terminate this cover early. It was an administrative error which AXA accepted it had made. The Respondent confirmed that the Claimant that AXA had confirmed that she would have been covered for any claim that she might have made on that policy until the termination of her employment. This was explained to the Claimant in an email from Mr O’Connor (dated 25 November 2021) (Respondent’s bundle, pp 244 – 245). Therefore, this was not an unauthorised deduction.[73]All the Claimant’s claims for unauthorised deduction from wages are, accordingly, dismissed. Schedule 1 Grounds of Claim 5 and 6[74]Recollections of what occurred during the meeting of 1st September 2021 differ between the Claimant and the Respondent. What is clear is that its purpose was to be a team meeting to discuss how the Respondent could improve on its CQC rating. The Claimant’s contention relating to the meeting is that the concerns of herself and her colleagues about not being paid for on-call rota hours were ‘dismissed’. Under the terms of her contract, the Claimant as a Clinical Lead was not entitled to be paid for being ‘on-call’ under her contract. The Claimant’s issues with this were addressed by Mr Hobson in a number of email chains and while the Claimant may have disagreed with the Respondent’s response to her concerns, they were not ‘dismissed’ by the Respondent. Grounds of Claim 9 and 10[75]The email of Ms Waldron of 27 October requests that the implementation of daily equipment log checks following an equipment failure at a patient’s home. It is not threatening in any way, and it does not place any blame either expressly or impliedly on the Nurse Clinical Leads, including the Claimant.[76]Ms Waldron offered her apologies to the Claimant for suggesting that they meet on 29th October when she knew that the Claimant was not at work as her son was having surgery. I do not accept that this email or the email chain relating to it was intimidating or that the Claimant was or could have been made to feel in any way intimidated by it.[77]As noted at paragraph 76 above, Ms Waldron apologised to the Claimant, as did Mr Garnham. The meeting that was suggested for the 29 October was cancelled.[78]The email of 28 October from Ms Waldron (at para 28 above) to the Claimant contains a list of instructions about tasks that need to be carried out in relation to patients. It is professional and polite and cannot be read to be rude as the Claimant suggests or in any way whatsoever.[79]Ms Waldron did find the Claimant’s email offensive. It stated: ‘Don’t take this the wrong way, but unfortunately you are not clinical’ to which Ms Waldron replied (email of 28 October): ‘You challenged me and questioned my skill and ability when all I asked is are you seeing one client a day’. Of the phone call, Ms Waldron says: ‘I did not scream you were become aggressive and spoke over me all the time so I cut the call short so we could involve a third party’. Both parties appear to have become heated during the phone call and I find that Ms Waldron felt the need to bring it to a close. While I accept that both parties were upset by the phone call, I do not accept the Claimant’s account of that telephone call or that Ms Waldron had screamed at her.[80]This is incorrect. The Claimant’s email was acknowledged by the HR Team on 3 November 2021, and a meeting was booked for 9th November to discuss the Claimant’s complaint in line with the Respondent’s grievance policy (which was to arrange a meeting in a reasonable time to discuss the matter). I also cannot discern any reason why the Claimant brings up the familial relationship of Mr Garnham and Ms Waldron when she does not assert why or how she contends that this is relevant to her claim.[81]Both Ms Waldron and Mr Garnham were apologetic when the Claimant’s son’s surgery was brought to their attention, and Ms Waldron did say that she knew about it. The meeting was cancelled.[82]Ms Waldron wrote in her email of 28 November ‘I am more than happy for Josh [Mr Garner] to listen to the call and think we can revisit this after the weekend. Please do not email back I see no reason to continue this until it is addressed with us all in a formal meeting’. Ms Waldron does not continue the conversation in this email. In fact, she does the opposite. She is in agreement for a third party to listen to the call and she also closes down the conversation to refer matters to a third party which was a reasonable thing to do in the circumstances.[83]For the reasons noted at para 80 above this is not correct.[84]As noted above (para 80), Human Resources had arranged for a meeting to take place to discuss the complaint. The meeting arranged for the 29 October between the Claimant, Ms Waldron and Mr Garnham did not take place. In this respect there is no identifiable breach of the ACAS Code of Practice on disciplinary and grievance procedures (11 March 2015).[85]This is incorrect. The Employee Handbook (at p 9) is clear that sick pay is only payable once an employee was absent for four or more consecutive days because of sickness provided the qualifying conditions for statutory sick pay were met.[86]Mr Hobson did approve the Claimant’s TOIL and it was paid as the Claimant concedes.[87]The email of 3 November from the HR Team (at para 35 above) acknowledges the Claimant’s email and reminds her of the available support as she has raised issues with her mental health. The Claimant acknowledges this (see para 36 above) in her email to the HR Team, Mr Hobson, Mr Garner and Mr O’Connor, in which she also thanks them for their support. I can find no evidence within this email exchange that the Respondent ‘downplayed’ the Claimant’s complaint about Ms Waldron in any way.[88]This is incorrect. Mr Hobson did investigate the Claimant’s TOIL (see paras 53 and 54 above).[89]This is incorrect. The findings on the car insurance are stated at para 70.2 above.[90]Mr O’Connor addressed the Claimant’s issues raised in her email of 5 November on 25 November. He apologised for the late reply but also stated that he had been busy and that it had also taken some time to investigate the matters that the Claimant raised.[91]The Claimant handed in her resignation on 8 November and her last day was due to be 6 December, however she agreed to bring this forward to 26 November and returned her company property on that day. She was not forced to bring her notice period forward by the Respondent but agreed to do so, notwithstanding that she continued to dispute matters in relation to wages and expenses that she said she was owed.[92]While Human Resources should have allowed the grievance procedure to continue (and should not have cancelled the meeting scheduled for 9 November) even though the Claimant had given notice of her resignation on 8 November, this of itself does not amount to a fundamental breach of the Claimant’s contract in all the circumstances. The Respondent’s decision has to be viewed in the Claimant’s email of 5th November, in which she stated: ‘Attending to the last occurrences with the miss usage of my TOIL and the refusal to pay my company expenses, both by Will, I would like to enquire if I should bring a solicitor to Tuesday’s meeting? And if I should cancel all my future visits to packages?’[93]Given that the Claimant mentions that she is considering cancelling her visits to her packages (and therefore not carrying out her obligations under her contract of employment) and that she had given notice of her resignation, it is not unreasonable in the circumstances for Human Resources to have taken the view that there was nothing further that could be resolved at this stage by holding the meeting. Schedule 2[94]See para 92.[95]The Claimant’s expenses were processed by Payroll on 12 November, as the Claimant notes Mr Hobson was not responsible for paying them that was a matter for Payroll. Mr O’Connor explained this process in his email to the Claimant of 24 November 2021 (see para 44 above).[96]Other than this assertion, no other evidence about this telephone call or its contents was provided and I am unable to conclude that it occurred.[97]This is incorrect. See para 44 above.[98]See the conclusions in relation to congestion charge (para 65) above.[99]This is incorrect. Mr O’Connor wrote to the Claimant responding to her complaints on 25 November 2021 (para 44 above).[100]See para 96 above.[101]See para 72 above.[102]While I agree that the wording of Mr Hobson’s email of 25 November is unfortunate, it was not unreasonable for him to ask the Claimant to bring her notice period forward in the circumstances. The Claimant by her own admission had been refusing to carry out her contractual duties, she states (Respondent’s bundle p 249 – 252): ‘All the things that I refused to do in the last three weeks are because it would jeopardise my NMC pin number and there isn’t any judge or NMC that would fault me for it’.[103]While the Claimant says that she feels threatened by Mr Hobson, I note that she uses similar language in her reply to Mr Hobson, when she refers to the many aspects of unsafe practice that she has encountered when working for the Respondent which ‘…might get to the CQC’ (Respondent’s bundle p 256). There is also no evidence about how that the Claimant, through the carrying out of her contractual duties, would have jeopardised her NMC pin number. Therefore, I conclude that she was refusing to carry out her contractual duties and had been doing so for around three weeks prior to Mr Hobson’s asking her to bring her notice period forward. The Claimant had also agreed to bring forward her notice period and returned all of the Respondent’s property (laptop, phone and car) on 26 November.[104]The Claimant’s claims in relation to unauthorised deductions of wages and expenses are considered at paras 62 – 73 above.[105]See para 52 above.[106]Mr Hobson was entitled to be critical that the Claimant had cancelled a patient’s assessment on the morning of 26 November as she was still employed by the Respondent on that date and this was part of her contractual duties.[107]See para 106 above. Mr Hobson was entitled to call the Claimant regarding her work on 25 November as she was still employed by the Respondent with her last day being 26 November.[108]See paras 62 – 73 above.[109]See paras 62 – 73 above.[110]See paras 62 – 73 above.[111]The Respondent explained that this was due to an error regarding payment links and that the Respondent re-enrolled all its staff in NEST, but it took some time to rectify the error. All contributions have since been made for all relevant employees, including the Claimant.[112]See para 111 above.[113]See paras 62 – 73 above. Summary of Conclusions on the issues[114]Was the Claimant dismissed?114.1 Did the Claimant do the things set out in the two schedules above?114.2 No for the reasons set out above.114.3 Did that breach the implied term of trust and confidence?114.4 No, for the reasons set out above the Respondent did not behave in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent.114.5 Did the Respondent breach another term of the Claimant’s contract?114.6 The Claimant relies on unlawful deductions: for the reasons noted above at paras 62 – 73 above, there were no such deductions.114.7 The Claimant alleges that the Respondent’s failure to deal with her three grievances was a breach of her contract of employment. I have considered the grievance lodged by the Claimant in her email of 28 October 2021 and her two further emails raising further grievances against Ms Waldron (29 October and 1 November 2021). The Claimant argues that the grievances were ignored. They were not ignored as all were acknowledged as noted above and a meeting was set for 9 November 2021 to investigate (which is in accordance with the Respondent’s policy on grievances). That meeting was cancelled by the Respondent upon receiving the Claimant’s letter of resignation on 8 November. The Claimant had complained about matters that had occurred between her and Ms Waldron. This was disputed by Ms Waldron and Ms Waldron had raised issues about the Claimant’s behaviour towards her. It was clear that the matters needed to be investigated and, as I have noted above, the investigation should have been allowed to take its course, however, in all the circumstances I do not consider this failure to amount to a fundamental breach of the Claimant’s contract.114.8 There was no failure on the part of the Respondent to enrol the Claimant in a pension scheme (see paras 47 – 48 and 111 above). Unauthorised deductions/breach of contract[115]Where the wages paid to the Claimant on the occasions set out above less than the wages she should have been paid? 115.1. No (see paras 62 – 73 above). 115.2 Any deductions made were authorised were required by statute or by a written term of the contract. 115.3 The Claimant had a copy of the contract before the deductions were made and she had signed the contract. Breach of contract[116]Given that the claims for unlawful deduction of wages have been found to be not well-founded, it follows that there was no breach of any relevant term of the Claimant’s contract.